Moonlighting | Unreasonable employers will find it difficult to attract, retain talent: TN Hari

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A tweet by Rishad Premji terming moonlighting ‘cheating’, following on the heels of Swiggy’s announcement that they don’t care what their employees do in their spare time if there is no direct conflict of interest with Swiggy’s business, sparked off a debate on what constitutes moonlighting, and whether it should continue to be stigmatised as in the past, or welcomed as the future of work.

The choice of words can sometimes be detrimental to a healthy debate, and probably the reference to ‘cheating’ has vitiated the atmosphere a bit.

The word ‘moonlighting’ has a legacy. In an era when companies paid employees for a fixed number of hours in a week or a month, and employees used a part of this time for other paid gigs, this was quite rightly considered ‘cheating’. However, times had changed, and a lot of the work had become knowledge work. Companies no longer paid knowledge workers for a fixed number of hours, but expected them to be available for as many hours as was necessary to accomplish business goals.

Business goals were becoming, ‘big, hairy, and audacious’, and the default was that most knowledge workers were getting overworked. Under these conditions, it would be only fair for these workers to be compensated for the additional hours or be allowed the freedom of taking up other paying gigs after putting in the minimum hours in a week or month for their primary employer. That did not happen. Work hours began creeping upwards, and companies continued to pay for just the minimum hours. This was a dichotomy that meant increasing exploitation of workers.

Many of the employees at the bottom of the pyramid at IT services companies are blue-collar workers dressed in white. If they had been true knowledge or tech workers and paid like they were knowledge and tech workers, the debate may not have been so heated. Expecting underpaid workers to work unlimited hours by restricting what they can and cannot do in their free time is the central issue.

No one for a moment is saying that employees can go work for a direct competitor in their free time or disclose information that is confidential. Every employer would be fair in saying ‘no’ to either of these. But using this bogey to curtail the freedom of their employees to do what they wish to do in their free time (paid or unpaid) is patently unfair. This is what those who are critical of Premji’s tweet are saying.

The Paradigm Of Work

The world of work has changed rapidly in the last decade, and the pandemic triggered many more changes. For one, it helped the overworked and underpaid workforce realise that they had more options than they had imagined. Many of them also realised that they were giving unlimited hours to low-paid and unfulfilling jobs at the cost of their other interests as well as their families. Sitting in the comfort of their homes, and avoiding crushing commute, they found the energy and time to pursue their other interests, thereby earning an additional stream of income as well as doing things that they found fulfilling.

Some companies claim that working from home can increase data theft. It would be good to see some facts on the number of data thefts during the forced work from home during the pandemic vis-à-vis prior periods. If it were true, this would have been an interesting trend that would have been picked up and storied. But this has never been brought up excepting when employees began expressing reluctance to completely give up the idea of work from home.

Assuming for a moment some companies genuinely believe that the fear is real, they could get their employees to work from office for the required number of hours (say 45 hours a week). But that still does not preclude what employees wish to do outside these hours, provided they stay within the boundaries of reasonable restrictions outlined earlier.

Asymmetric Contracts

Some of the companies that have taken strong positions on moonlighting by calling it ‘cheating’ have also taken a bit of a cavalier attitude on the other elements of employment contracts, such as notice periods, non-compete, non-solicit, etc. Many of these clauses are blanket clauses, without an application of mind, and can no longer stand the scrutiny of ‘reasonableness’, and can be challenged not just from a legal perspective but also from a moral point of view.

This is precisely the attitude that triggered formation of employee unions in the past. Companies earn the right to avoid going through collective bargaining only by being fair and transparent. The right to form associations and unions is a fundamental right under Article 19(1)(c), and, therefore, any company that is denying its workers the freedom of association, through direct or indirect means, could be eventually in trouble.

You should have been living under a rock for a few years not to have seen the growing trend of gig work. If you see moonlighting in the context of this trend, it loses all the stigma associated with it. There will be three categories of workers in this context; namely, a) those that enter into a contract for a fixed number of hours a week with someone they call a primary employer, and perform gigs outside these hours, b) those that have no primary employer and just perform multiple gigs, and finally c) those that are prepared to work whole and soul for just one employer in exchange for extremely attractive benefits and perks.

Conclusion

For the moment, suffice to say that employers who take a restrictive and punitive approach will find it difficult to attract talent. They will face a high level of attrition, and high attrition in turn would get them to probably clamp down even more, leading to a vicious cycle of high attrition and dissatisfaction. It is time to think and act wisely.

TN Hari is Co-founder, Artha School of Entrepreneurship. Twitter: @TNHari. Views are personal, and do not represent the stand of this publication.